Gerasimov v Allianz Australia Life Insurance Ltd; Gerasimov v Suncorp Life & Superannuation Ltd; Gerasimov v Onepath Life - [2012] NSWDC 118 - NSWDC 2012 case summary — Zoe

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Gerasimov v Allianz Australia Life Insurance Ltd; Gerasimov v Suncorp Life & Superannuation Ltd; Gerasimov v Onepath Life

[2012] NSWDC 118

District Court of NSW|2012-08-10|Before: Mr P

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At a glance

Source facts

Court

District Court of NSW

Decision date

2012-08-10

Before

Mr P

Catchwords

(2009) 78 NSWLR 265 Johnston v Australia and New Zealand Banking Group Ltd
Johnston v Richardson [2003] NSWSC 454 Halpin v Lumley General Insurance Ltd [2009] NSWSC 644
(2009) 258 ALR 588 Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 428 Boyes v Colins [2000] WASCA 344
2011/304114

Source

Original judgment source is linked above.

Catchwords

(2009) 78 NSWLR 265 Johnston v Australia and New Zealand Banking Group LtdJohnston v Richardson [2003] NSWSC 454 Halpin v Lumley General Insurance Ltd [2009] NSWSC 644(2009) 258 ALR 588 Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 428 Boyes v Colins [2000] WASCA 3442011/3041142011/292705

Judgment (20 paragraphs)

[1]

Applications 1There are a number of Notices of Motion before the court:- (1)Notice of Motion dated 16 May 2012 seeking the consolidation of the proceedings. This is now not opposed and orders will be made by consent accordingly. Similarly the parties seek that evidence on the proceedings in one application be taken as evidence heard in all three proceedings. Again, this order is not opposed. Appropriate orders will be made by consent. (2)The Defendants seek orders for discovery by the Plaintiff of the following objects or documents: (a)hard drive of Mr Safronov from June 2005 to the date of hearing; (b)hard drive of the computers used by the Plaintiff, Mr Gerasimov, from June 2005 to the date of hearing; and (c)copies of Mr Safronov's individual tax returns, notices of assessment and other wage employment documents from 2005 to the present. That discovery is sought as a precursor to inspection. The application is opposed. (3)By Notice of Motion dated 15 June 2012 the Plaintiff objects to inspection by the Defendants of the documents produced on subpoena. There are 10 entities to whom subpoenas have been issued. That is opposed. (4)By Notice of Motion filed 7 August 2012 the Plaintiff seeks particulars of the Defendants' Amended Defence filed 8 June 2012. That is opposed. (5)The Defendants seek to be relieved of any obligation to discover documents which have been brought into existence in the course of their investigations into what is said to be the death of Mr Safronov. That claim is made pursuant to Uniform Civil Procedure Rules 2005, 31.10 - see below. That is opposed.

[13]

Consideration 36I have examined the folder of documents (exhibit VD 1) containing the affidavit of Melissa Louise Godfrey sworn on 9 August 2012 and the marked annexures. That includes a letter and report from Centricity dated 28 August 2010. Clearly any evidence sought to be led from that material at the hearing will be subject to the normal requirements to establish relevance. 37The folder of material is simply advanced at this stage to establish that there is a reasonable cause for the application and good reason to protect the forensic advantage the Defendants may have if the matter proceeds. 38Halpin & Ors v Lumley General Insurance Ltd [2009] NSWCA 372; (2009) 78 NSWLR 265 at [101], requires that the issues must be clearly defined and relevance established prior to any direction being made. 39Viewing the scope of the matter, the material submitted and the matters disclosed on the proceedings, it seems to be that the material sought may have a capacity to throw a light on the issues in the main case - namely -whether the death did not occur and whether Mr Safronov is or was still alive) and the secondary issue, namely, the existence of the scheme as set out above. The documents may also be necessary in the cross-examination of those concerned with the authenticity of the relevant certification. 40In my view, the material does not assist the Plaintiff's case. 41On the case pleaded to date, all the Plaintiff as executor will need to do in essence is to tender the relevant policies and the properly certified Death Certificate. The documents in the folder do not affect that entitlement. However, the documents in the folder demonstrate that the Defendants have actively investigated the matter and not just sat back to delay or defeat the claim. I see nothing at this stage to indicate that the Defendants have not fulfilled their duties under the Civil Procedure Act 2005 nor that they have unduly delayed the claim or the hearing. As I have said, the Defendants admit that the filing of a New South Wales death certificate on 19 March 2011 raises a rebuttable presumption against each of them. 42The factual background is as I have set out. As to the forensic advantage claimed, there is some history to the matter given that the two different death certificates issued by what is said to be the one Ukraine authority in a relatively short time period and appear to relate to two different individuals. How that could have occurred and what inferences may arise are matters for the trial. The NSW certificate will only be as good as the Ukraine certificate is found to be at the hearing. 43Whether the material in the folder will be sufficient to establish the matters the Defendants will be required to prove is a matter for the Court at the final hearing.

[15]

Privacy of Executor 50In my view the limited class of documents may be relevant on the fact in issue. However, I have considerable concerns about Mr Gerasimov's entitlement to privacy which I have raised a number of times during the hearing. There is increasingly a blithe disregard by some computer analysts for the rights of electronic privacy of others which should not be encouraged by court inspection orders. Documents produced are capable of immediate and widespread dissemination. 51A person is entitled to act as an executor without being apprehensive that all his personal documentation and records will be trawled through or subject to electronic analysis, investigation or recording. It may be oppressive, for example, for a solicitor's firm where a partner is acting as an executor to have to provide discovery to all its records without being limited (at least) as to time, date and the particular client. 52However, the attitude of the Plaintiff's legal representatives, as I understand it, is that discovery relevant to documents retained by the executor concerning Mr Safronov for the specified period has been totally refused. 53The documents and computer records accessed must be carefully specified. 54Any search of Mr Gerasimov's computer or other records must be limited to documents or the computer records of files only relevant to these proceedings having or bearing, for example, Mr Safronov's name or containing details of accounts which he had in existence at or prior to his departure from Australia. 55I am informed that there is a search programme which can include reference to deleted files on a hard drive. I would need to be satisfied that the use of any such programmes are not capable of damaging Mr Gerasimov's records or systems. 56Mr Gerasimov is entitled to be present during any examination and that proper indemnities are given, regardless of the outcome of any search, as to the integrity and privacy of Mr Gerasimov's private records and the safety of his computer equipment. 57I will hear counsel on the terms of such orders but I would emphasise that the rights of a third party - as Mr Gerasimov may well be relevantly in relation to this aspect of the matter - need to be able to be shown to be protected before any orders will be made. A draft of orders has been circulated and amended. The final orders made reflect these matters.

[18]

Orders (1)I direct that proceedings number 2011/301247, 2011/301/304114 and 2011/292705 be case managed and heard together. (2)I order the Plaintiff to produce for inspection and copying in these proceedings and in proceedings numbered 2011/292705 and 2011/304114 all computer hard drives in his possession, custody or control used by him during the period from November 2009 to date to a computer expert to be nominated by the Defendants. (3)I direct the said computer expert to: (a)conduct such non-destructive examination of the said hard drive or hard drives as the expert considers to be reasonably necessary to identify the existence of any documents falling within the categories set out in the attached Schedule; (b)make electronic copies of any documents falling within the categories set out in the 'attached Schedule ("the copies"); (c)provide the copies to the legal representatives for the parties; (d)return the original hard drive or hard drives to the Plaintiff's solicitors (4)The expert's costs are to be paid by the Defendants regardless of the outcome of the proceedings. (5)I direct the said computer expert (and any accredited translator retained to interpret any documents) to give a written undertaking that no copy of a document, or information from a document, obtained by the expert in the examination is to be disclosed or used otherwise than in accordance with directions given to the expert in this Order. (6)I direct the Defendants and the said computer expert to permit the Plaintiff, his legal representative and any computer expert retained by the Plaintiff to be present during the examination. (7)In the event that there is damage to the computer (including but not limited to damage to the hard drive and any loss of or damage to data) caused by or during the examination, I order the Defendants in each of the proceedings before me, being proceedings 2011/301247, 2011/292705 and 2011/ 304114 to indemnify the Plaintiff against any economic loss caused by such loss or damage. (8)The following documents are excluded from the application of order (2) above: (a)An "excluded document" as defined in the Uniform Civil Procedure Rules 2005 (NSW) r21.1 and in particular any document that wholly came into existence after 21 September 2011; and (b)Privileged documents and in particular documents produced for the sole purpose of providing legal advice to the Plaintiff or providing legal instructions to the Plaintiff's solicitors.

[19]

SCHEDULE A. All documents evidencing or purporting to evidence the alleged death of Vladimir Safronov (including all translations) including but not limited to death certificates, autopsy reports, photographs and other records of alleged death. B. All documents showing or tending to show the identity of Vladimir Safronov including but not limited to copies of all passports (including but not limited to Australian and Russian passports), citizenship/naturalisation records, driver's and other licences, Medicare cards, credit/debit cards etc. C. Copies of any and all documents pertaining to Vladimir Safronov's journey from Australia to Russia and/or Ukraine in or about October or November 2009, including but not limited to travel itineraries, booking receipts/confirmation, tickets etc, D. Copies of all documents, photographs and communications (written or electronic) passing between Vladimir Safronov and the following parties, and any record of telephone conversations between Vladimir Safronov and the following parties, for the period June 2005 to 21 September 2011: (a)i. The Plaintiff, Sergey Gerasimov; (b)ii. Any and all beneficiaries named in Vladimir Safronov's will (Sergey Gerasimov, Sergey Cherdantsev, Sergey Grigorevski, Elena Chuprakova, Daria Chuprakova, and Oleg Zhirnokfev (also spelled "Jirnoklev"). E. Copies of all documents, photographs and communications (written or electronic) passing between the Plaintiff (Sergey Gerasimov) and the following parties (whether directly or via a third party or third parties), and any record of telephone conversations between the Plaintiff (Sergey Gerasimov) and the following parties, for the period June 2005 to 21 September 2011: (a)Vladimir Safronov; (b)Any and all beneficiaries named in Vladimir Safronov's will (Sergey (c)Gerasimov, Sergey Cherdantsev, Sergey Grigorevski, Elena Chuprakova, Daria Chuprakova, and Oleg Zhirnoklev (also spelled "Jirnoklev"); (d)Ministry of Home Affairs (Ukraine); (e)Ministry of Interior (Ukraine); (f)Ministry of Health (Ukraine); (g)Ministry of Internal Affairs (Ukraine, but not limited to the Kharkiv/Kharkov region); (h)Central Department of Health (Ukraine); (i)Municipal Health Care Institution (Ukraine); (j)Kharkov City Bureau of Forensic Examination (Ukraine); (k)Any Crematorium in Ukraine; (l)Civil Registry Office of the Kharkiv/Kharkov City Department of Justice; (m)Any other Ukrainian government or government body not mentioned above; (n)NSW Department of Births, Deaths and Marriages. F. Copies of all documents showing or tending to show the dates on which each document falling within the above categories above were received by the Plaintiff and from whom the Plaintiff received each of these documents. Note that in the categories for discovery set out above, "documents" means any record of information and includes: (a)Anything on which there is writing; (b)Anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; (c)Anything from which sounds, images or writings can be reproduced with or without the aid of anything else; (d)Any email or electronic communications - including (but not limited to) internet search histories and/or chat services such as Skype, MSN Messenger etc; (e)A map, plan, drawing or photograph; (f)Any part of a document; (g)Any copy, reproduction or duplicate of the document or of any part of the document; and (h)Any part of such a copy, reproduction or duplication (9)Evidence on the proceedings in one application be taken as evidence heard in all three proceedings. (10)The costs of and incidental to these proceedings be costs in the cause. (11)Flagged documents from Exhibit VD 1 to remain on file. (a)I direct that the Defendants in proceedings 2011/301247, 2011/304114 and 2011/292705 not be required to serve on the Plaintiff or produce for inspection the affidavit of Melissa Louise Godfrey dated 9 August 2012 handed up in court in support of the Defendants' application for orders in the nature of the "Markus" discretion. (b)I order that the documents in respect of which the "Markus" privilege is claimed, being Annexures V-DD inclusive of the said Affidavit of Melissa Louise Godfrey and the substantive affidavit be removed from the affidavit and placed in a sealed envelope in the court file and marked "Exhibit VD 1 inspected by the court for the purposes of the Notice of Motion heard on 10 August 2012." (c)I direct that the sealed envelope to which I have referred in 11(b) above be retained on the court file and not opened without leave of a judge. (12)I grant general access to the parties and their legal representatives to the documents produced under subpoena by: (a)Citigroup Pty Limited (b)NSW Registry of Births Deaths and Marriages (c)Department of Immigration and Citizenship (d)Southern Cross Protection Pty Ltd (e)ANZ Banking Group Limited (f)The Commissioner of Police (g)Commonwealth Bank of Australia (h)Telstra Corporation Limited (i)St George Bank (j)Vodaphone Hutchinson Pty Ltd (13)Order that Motions otherwise be dismissed. (14)Matter is adjourned for mention before the List Judge on Thursday, 25 October 2012.

Gerasimov v Allianz Australia Life Insurance Ltd; Gerasimov v Suncorp Life & Superannuation Ltd; Gerasimov v Onepath Life

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (20 paragraphs)

Legislation Cited (1)

Cases Cited (10)